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Intrepid

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  1. We we're about to cross post. I have taken the time to re-read the thread from the beginning and I have to say a lot of @lookinforinfo earlier posts, in particular #25 were right on the money. In addition thank you @FTMDave for sticking with the thread. It has been quite useful to re-read the comments after hearing and with a full appreciation of how they were applied by the judge. A lot of the information provided between you was so on point you may as well have been deciding the claim. Having had some time to process the judge's approach to the counterclaim I accept my mistake was to focus on UKPC's application for data and not for the subsequent processing which took place, a point @lookinforinfo made very early on. I was concerned if the claim wasn't heard that UKPC would withdraw prior to the hearing and any opportunity to gather important evidence would be lost. I do understand the logic of a separate claim giving the opportunity to settle but I am also mindful that if no settlement is reached something credible has to be on offer to decide the claim. The safest approach would be a complaint to the ICO seeking their view. If it is returned in favour then the a claim becomes almost a slam dunk save perhaps for quantum. I will give some thought as to a further claim in the next few days but I want to make sure I get it right. I agree it was fortunate to have a prepared judge, it would have been very distasteful to have had to fight the judge as well as the claimant but it couldn't have been further from having to do that. That's a good summary of Duff v Secretary of State and in the full context of the claim I see now that without reasonable cause is in reference to the lack of Duff's membership to an accredited association. I believed it could be applied in other similar contexts, and it probably still can. I think the point was mainly that it was only particularised that the breach had occurred but not when. How was I to know at the time the application for my data was made it was allegedly unlawful, I couldn't, even though I argued that it was even if outside of my knowledge for a period of time. So I moved on to it being within my knowledge from the date the PCN was received. I recall you suggested informing UKPC that I was neither the driver and the PCN wasn't compliant and that a breach would occur if further processing occurred. I did not inform UKPC I was not the driver, although I think the judge made clear that once you are pursuing the keeper you must give up pursuing the driver as that is the intention of the POFA. I agree that just because they failed to evidence an up to date contract in their claim doesn't mean it doesn't exist. I will give it some thought and come back with any questions/ideas as they come up.
  2. Regarding the disclosure of data, UKPC's counsel did reference a document which I don't recall having read. The document is an opinion published by the ICO on the lawful basis upon which the DVLA processes (discloses) vehicle keeper details. https://ico.org.uk/media/about-the-ico/documents/4020676/dvla-opinion-20220613.pdf I haven't fully digested its impact on a claim for a breach of the UK GDPR. The fact UKPC requested vehicle keeper details with an expired contract could mean it failed to show it had reasonable cause but I can also imagine a tenuous argument that even if the contract is expired the data can be requested for the establishment, exercise or defence of legal claims. In this case the DPA 2018 would be at odds with the criteria set out by Transport Secretary to show reasonable cause but I would expect a legislative mechanism to trump governmental policy.
  3. Claim dismissed, counterclaim dismissed, no order as to costs. Certainly one of the better experiences in front of the bench. I wasn't wrong that of course the Court had a proper copy of UKPC's witness statement. As I did too there was no test to what would have happened if I did not, probably a quick hand over and 5 minutes of reading to save an adjournment. The Judge did almost all of the heavy lifting based upon the evidence without removing the opportunity for either party to speak, they saved a lot of argument and put aside any assumptions that could be borne out of any of the stated facts making quite clear that the Court wouldn't deal with assumptions. It's clear that parking claims are bread and butter to most judges but in this case no expense was spared. The Judge immediately addressed the evidential hurdles UKPC had to overcome, the fact Mr Little wasn't available to give evidence and that it could plead its case against the driver or the keeper but not both (Counsel pleaded the keeper). UKPC's counsel were clearly aware of the deficiencies of UKPCs WS and wasn't going to waste the courts time (I'm not saying they didn't adequately represent them, just that it was clear they knew they'd been given almost nothing legitimate to work with and were unable to give evidence). From this point I got the impression the judge was simply working off their experience rather than what was within the skeleton which covered almost everything the Judge did and a little more. Having only been to one parking claim (this one) I have no idea whether judges ever sit back and let the parties have their go and depending on their sensibilities leave the unprepared flaying in the wind. In any case because the Skeleton was so full there can be no question that the Defence was advanced by the judge. Only a regular returning barrister would know if the submissions made any difference or whether this was just the judge's style (probably the latter). The points honed in on were: the contract expiry date and lack of evidence to support the assertion the contract had been renewed; the contract did not clearly evidence who was the landowner; the photos were not clear evidence of the vehicle's location in reference to signage or land; the description of the address on the expired contract is not determinative; the photos showed no time allowed for a driver to read the terms (BPA 13.1, the Judge directly referenced Beavis on the applicability of the code, and the code itself); the PCN was issued first and then the photos were taken (a point I had missed); the terms didn't form a contract as no license was on offer, you either have it or don't (and I was asked if I did); the NTK was defective for not specifying a period of time; and the so called "land plan" held no weight because it didn't show the location of the signs (I wasn't expecting this but as pointed out the "land plan" wasn't keyed) and didn't properly identify any boundaries. I added, and it was accepted that the additional £60 was unenforceable and that the notice didn't comply with the wording of the legislation (credit to @LookingForInfo ). As to the counterclaim the judge dropped an early hint that one issue to overcome was when it was determined UKPC had breached the act as it was pleaded that the breach had already occurred but no judgment had been given. They also said they had received no medical evidence in support of the claim and that quantum was at the Court's discretion so why £1000. I had for some reason (incorrectly) the idea in my head that the claim would be heard and decided and then the counterclaim heard and decided, albeit that the judge knew which way they were going on the claim before hearing the counterclaim. Of course the judge provided their judgment on both at the end of the hearing consecutively. The way the argument fell was that I asserted UKPC's application for data was unlawful because there was no reasonable cause. The judge concluded that the power of the legislation within the POFA 2012 was sufficient to allow the PPC to apply for the data. There was a question as to whether one legislation should override the other. I said they were not at odds but that if it is later found that UKPC had no reasonable cause then they can be held liable per the DPA 2018. It was not accepted that if a PPC later impermissibly enforced a liability that this then invalidated the PPC's previous request for data. The question was raised as to why the DVLA shouldn't be held responsible as the controller to which I responded because UKPC processed the data (processors are also liable). I'm not sure if I had successfully pleaded that UKPC continued to unlawfully process my data that would have changed the outcome. UKPC were listed in court 3 times today (one was a judgment set aside) so that certainly puts to bed any impression from other areas of the internet that UKPC give up every claim. However I expect UKPC would have discontinued and I would never have had sight of the contract without the issuing a counterclaim. I accept that waiting for the claim to be over and then making a claim for breach of GDPR would overcome the issue of whether it had been determined the breach has occurred. It is clear now from the evidence that UKPC have applied for my data using an out of date contract but as that was not known to me at the time I did not raise it as an argument (perhaps I should have) but it could not have contributed to any distress. I knew the counterclaim was dead by this point but I still offered submissions on quantum and argued that outside of medical examination, evidence of distress can only come in the form of a witness statement. It was pointed out to me in the WS that I had evidenced how the claimant's conduct could be distressing but did not clearly state that it affected me. However I referred the judge to the particulars which did do that, in any case it was irrelevant. The counterclaim was dismissed because the judge held there was reasonable cause to apply for personal data based on the fact a vehicle was parked on land without a permit. I wasn't sure if the judge was going to inadvertently accept UKPCs claim with the finding but it was worded carefully enough so that it appeared to UKPC to be a breach and therefore that was sufficient. We disagreed on the point that appeared wasn't good enough but obviously I don't get to decide. The judge was mainly persuaded by the mechanism provided for by the legislation in the POFA 2012 to request keeper details. Of course it would take a brave judge to open up the idea as was Counsel's point that every failed PPC claim should become an automatic breach of the UK GDPR. For £70 and a free hearing I'd call that a cheap lesson. I am debating whether to advance another claim, it could be argued a fresh claim is being advanced on the same facts but now there is evidence the contract was out of date this should differentiate it from the counterclaim. As to costs the Judge couldn't be persuaded UKPC's conduct was unreasonable, it was held costs should only be paid as compensation and that dismissing of their claim was the outcome of the deficiencies of its claim.
  4. I disagree insofar as that it was a finding of fact in Parking Eye v Beavis UKSC that sufficient signage was exhibited at the entrance and throughout the car park. In my view the UKSC hasn't overturned anything of significance in the judgment in Beavis EWCA, both courts found that sum was enforceable. However the EWCA considered in more depth the applicability of good faith and the disclosure of terms. The fact the UKSC didn't revisit this topic is either indication that it was satisfied as to the EWCA's assessment or that it wasn't a point upon which the appeal was brought to the UKSC. How this is relevant is that the judgment of Beavis EWCA still re-affirms at common law the good faith practice of disclosing terms which I will argue UKPC failed to do under the circumstances. I agree less is more. I'm aware the Skeleton should be designed to navigate the court succinctly through the issues. The problem I believe defendants face in these circumstances is that the Claimant fails entirely to narrow the issues in what is a poorly particularised claim. This is in part because their main goal is to obtain default judgement and they know the risk of facing an application to strike out is probably in the single digit percentages in part because the cost of application is larger than the value of the claim. So I had a choice file something very succinct, a couple of pages perhaps, or on the other hand the full monty. As you've alluded to yourself why risk leaving anything out the judge can latch on to that may side with you. What I ultimately decided was to do was use a trickle down argument; the car wasn't there, and if it was UKPC aren't entitled to act as a creditor, and if they are they didn't offer proper terms, and if they did they didn't provide notice of them, and if they did they didn't notify the driver, and if they did they didn't transfer liability to the keeper, and if they did they over claimed, and if they didn't they litigated unreasonably. A good summary, I will focus on these points at the hearing. I expect at one point the judge will ask me whether I accept the fact the vehicle was parked at 1-21 the Martletts. It's probably much easier to give judgment and less likely to be appealed if you can get parties to admit facts rather than having to find facts based on probabilities. Given the evidence before me I'm not sure that a red line on a google maps screenshot (which is incorrect as they have included spaces clearly belonging to the car park) is sufficient. No boundary has been provided from the land registry, UKPC's so called "land plan" is as valid as my assertion that the Martletts is on the other side of the premises until proven otherwise. Perhaps I should have made more of the fact they have not provided evidence that these properties are able to share the use of any land.
  5. I disagree per Duff v Secretary of State for Transport [38] ii) "In any event, a person who wanted disclosure to enforce a liability by improper means would have a cause for wanting it, but not reasonable cause". If UKPC's claim fails they have attempted to enforce a liability by improper means. Even if the judge only strips them of £60 I can still argue this point. It may be hard to believe, but I will argue it still needs to be evidenced, I know its judge lottery, but the decision should be based on the evidence before the Court, if the Claimant has failed to produce that evidence it should not be for the Court to assist them in their claim by speculating on their behalf. Same as point above. Thanks to your input I wrote to UKPC very early on notifying them it's notice to keeper was non-compliant. By the time UKPC initiated proceedings it was clear they were attempting to enforce a liability using improper means, I counterclaimed on this basis.
  6. There is a cost to bringing a counterclaim, it is the cost of the issue fee. The hearing fee is paid by the Claimant. Given the stage of the claim (WSs exchanged) I am not sure what further evidence one could expect there is to be gathered, or how it would affect the counterclaim, alternatively an early withdrawal could result in no evidence being exchanged. I believe I have covered prohibitive signage, would it be unfair to suggest you may not have read or understood the skeleton in defence of the claim? I have read before some judges have been quick to dismiss the argument of prohibitive signage, it may very much depend on the circumstances such as pay and display vs permit. Consideration is old and nuanced and largely fallen out of favour, but even if a judge were wrong no litigant is likely to argue otherwise. Given parking claims are often set for 30 minutes that isn't sufficient time to go back through centuries of contract law when there may be easier points to leverage and decide the case. I don't believe location is the main spar of the argument. There are eight elements to the argument in total, the strongest of which is probably, no locus standi (having confirmed UKPC's contract was expired and in the absence of evidence to the contrary), no clear signage and the inclusion of an unenforceable penalty sum. I'm not sure why you consider the location to be the only point relevant to the counterclaim or why it needed to be included. A failure of their claim, save for perhaps a strike out for abuse of process in my view is a lock in that UKPC had no reasonable cause to request my personal data. You haven't addressed my earlier point that a withdrawal by UKPC of its claim isn't admission of no reasonable cause, in my view only a judgment can show that definitively. As to your last point, if UKPC withdraw, the counterclaim survives so I am in the same position as issuing a separate claim except a separate claim is added costs and riskier in my view. Also if UKPC withdraw with no counterclaim there is no opportunity to bring to the attention of the Court their unreasonable behaviour without making an application. My understanding is an application solely for the assessment of costs on the SCT would not be looked upon favourably and would be an even greater uphill struggle. I am open to a full explanation as to why it would have been better for UKPC to withdraw and how it would strengthen a later claim for a breach of the UK GDPR but right now I just don't see it. UKPC often withdraw before WS exchange so no contract would have been seen, they didn't even serve it on time, it took an SRA complaint to spur them into action. I understand we view some things differently, your extensive knowledge of parking claims has been very helpful and I should have said earlier despite the fact I have done some things differently I have no prior experience of parking claims and all of the contributions have been incredibly helpful (including the counter points). I understand a withdrawal is generally considered a victory for most, this is probably where we fundamentally differ.
  7. Thanks, when this goes in front of a judge this could well be some of the case law Monzo rely upon. I have only skim read your post above so far but all of the cases and analysis relate to accounts which hold an existing authorisation for an overdraft facility with the exception of the first example. I understand Monzo may have offered me a current account where a basic bank account would have sufficed, but that a current account with no overdraft may fall under the CCA section quoted above. My understanding from reading the FCA handbook is that the use of an unauthorised overdraft should be to the benefit of the account holder, i.e. to ensure the gas isn't shut off for the sake of a missed payment. It is not intended to be used by a bank that cannot be bothered to complete an arbitration process. In the first example D drew a cheque which was later honoured. In my case the payment was subject to a dispute, it was not on offer on my behalf for the bank to pay the money. Monzo in default of its written mastercard chargeback policy, didn't even consider to continue the arbitration process in my view because it suited its own interests and not those of its customer which was its legal obligation.
  8. I don't, I sent the request to prove the account was never subject to a CCA. Monzo still report the current account as money owing but how can they be lending me money, on a closed account, that was never subject to a CCA, and which no overdraft was assigned?
  9. I sent Monzo a CCA request, it was returned with a written paper slip indicating the reason it wasn't actioned is because the account was closed. Is account closure a sufficient reason not to respond to a CCA request?
  10. I am not being critical of your process, it certainly helps a lot of people, particularly those that just want UKPC and others to get off their back and don't necessarily want to argue their case in front of the bench. I'm not sure the process is that different (baring the counterclaim) save for moving argument to a Skeleton instead of a Witness Statement. Like most things in life there are lots of different ways to get the same result. I would still like to know which arguments you consider out of date, if and when you have the time. Skeleton Arguments are flexible and advocates can focus on the points of more value and steer away from those with less value if necessary at a hearing.
  11. As I have said before UKPC are walking a tight rope, they have already had two suspensions from the KADOE database and if I am successful a copy of the judgement will go to the DVLA and ICO to whom I will make it clear that UKPC have been unlawfully accessing data on a speculative basis. Taking into account the fact UKPC made over £3 million in profit last year, I wouldn't risk a permanent exclusion for the sake of £1000 but I doubt DCBL have the brains to offer such sound advice to their client. I predict the DVLA wont give a monkeys, integrity is simply too much hard work for most organisations and their agents aren't paid enough to care.
  12. @lookinforinfo I understand your points but I disagree for the following reasons: 1. I am aware of UKPC's strategy to discontinue almost all of their claims, I don't want them to be able to walk away that easily, partly because it's a considerable time and effort to deal with these people and a hearing gives me an opportunity to raise the issue of costs. 2. Part of me is hopeful that some judges are waiting for the opportunity to hit them with the whacking stick provided the opportunity and which is few and far between because UKPC so often run away from scrutiny. 3. If UKPC withdrew their claim I think it is ambiguous as to whether they had reasonable cause. Withdrawal of a claim isn't an admission it is meritless, only a judge can decide that. If they withdraw they can still argue later they had reasonable cause but for any number of reasons didn't continue their claim, I can say they didn't but it will be hard for me to prove. If on the other hand a judge has dismissed their claim, it is beyond doubt they had no reasonable cause to acquire my data. 4. If I counterclaim, the Claimant pays the hearing fee, if I sue at my own initiative the costs of issuing my claim and paying the hearing fee will be much greater. 5. Claims for breach of GDPR have been deliberated in part on the delay between becoming aware of the breach and issuing a claim, I therefore have no issue with the timing of a counterclaim. I too am aware of judge lottery, if I had sat on my hands until the hearing, all that would likely have happened is the judge will ask the other side to provide me with a copy of the missing exhibits and then ask both parties if they are happy to proceed, it is very unlikely to kill the claim dead. Court's have lost my witness statements in the past and just barreled on without a care. I'm not interested in litigating based upon how the theoretical justice systems works (ask the post masters how that went). I am more interesting to continue as things are likely to happen. Thank you all for the useful comments, I will certainly bring them up at the hearing on the basis that I was not given sight of the contract until very late in the proceedings.
  13. Unless I am mistaken I cannot see any actual evidence at page 15 that the contract was extended beyond 20.08.21. The ticket was issued 7.12.21 and the claim was issued 24.03.23.
  14. DCBL sent the missing exhibits which contain UKPC's contract and the land plan. Attached below. UKPC - Claimant - Witness Statement Exhibit 1, 4 Redacted.pdf
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